Last September, Harvey wrote in The Free For All about Star Simpson -- the MIT student who was arrested at Logan Airport for wearing a (prank) sweatshirt displaying a working circuit board connected to a battery -- and predicted that "there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber." Well, this morning's Boston Herald confirmed Harvey's prediction, reporting that the DA's office decided not to pursue the hoax charges because they could not have proven her "intent to cause anxiety, unrest, fear or personal discomfort" -- a necessary element of the crime -- to a jury. Instead, she gets pre-trial probation for the disorderly conduct charge, and prosecutors plan to drop that charge in a year if she completes community service and doesn't get into any more trouble. 

Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.

By Harvey Silverglate

It’s unlikely that the pooh-bahs at the Bush Administration’s Department of Justice (DOJ) read any civil liberties column or blog, let alone The Free For All. But I can’t help but think that somehow this blog launched an idea when I suggested on February 8 that the DOJ sic its legal ethics watch-dogs from the Office of Professional Responsibility (OPR) on the DOJ lawyers who drafted the infamous “torture memos.” (Dan Kennedy certainly saw the connection!) My argument is that the blame for whatever illegal conduct was authorized by those bogus memos should be placed on those who deserve it: the lawyers who gave the bad legal advice, rather than the CIA agents and others who depended and acted on the basis of that advice.

And so I read with some satisfaction Dan Eggen’s Washington Post report indicating that the DOJ’s OPR had begun such an investigation. The first subject of the OPR’s scrutiny is Jay Bybee, the former head of the Office of Legal Counsel at the DOJ (and now a sitting federal judge for the Ninth Circuit Court of Appeals) who signed the infamous August 2002 memo (PDF). The key bit of chicanery deployed in that memo was the legal conclusion – breathtaking as a sheer matter of legal scholarship – that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The other subject of the OPR’s investigation is John Yoo, who is said to have actually drafted that piece of legal nonsense while serving as Bybee’s then-deputy, and is now sitting in a tenured position at the University of California-Berkeley Law School (having switched from being paid with our federal tax money to living off of the taxpayers of California). As a result of the legal advice given by these charlatans, human beings were subjected to waterboarding in 2002 and 2003, while others were subjected to stress positions and psychological torture techniques. Over at Balkinization, Marty Lederman published a series of critiques (see, e.g., here) of the 2004 memo that superseded and repudiated the Bybee memo – but which left the door open for torture to be used.

We will do our best to follow the OPR’s investigation, hard as it will be, since OPR investigations are notoriously secret, although in this instance the OPR has indicated that an unclassified version of its final report will be made public when it is delivered to Congress. Though the punishment visited upon a DOJ lawyer sometimes becomes public, neither Bybee nor Yoo is still a DOJ employee, so no formal intra-department discipline can be recommended by the OPR. Instead, the DOJ can refer the matter to state bar associations or other agencies in charge of disciplining lawyers for unethical conduct. If this investigation results at some point in discipline – whether a mild admonition or censure, or a more radical penalty like suspension from practice or disbarment – it is possible that the life tenure enjoyed by these two lawyers could be disturbed.

Federal judges, for one, “shall hold their Offices during good Behaviour,” according to Article III, Section 1 of the Constitution. This means that if they behave badly (a standard notoriously difficult to define but left up to the Congress), they are subject to impeachment. And every university or law school has its own standards for revoking tenure. Of course, bouncing a judge or a tenured professor presents serious questions of judicial independence for the former, and academic freedom for the latter. But, as I wrote in my last post, there’s a difference between publishing revisionist law review articles as a law professor – as Yoo has done under the protection of academic freedom, both before and after his stint at DOJ – and ignoring federal statutes and treaties while advising the Executive Branch on its legal duties. This distinction would likely be key in any effort to discipline or dismiss Professor Yoo, or unseat Judge Bybee.

The point is that there are myriad questions to be answered, both substantive (did Bybee or Yoo commit unprofessional or unethical acts? did they write their nonsense in bad faith?) and procedural (who decides, how, and what results from such findings?). This is a long but vitally important road to travel, since there should be consequences when a government lawyer has put his imprimatur on advice that the lawyer knew, or should have known, was contrary to federal as well as international law to which the United States has accorded treaty and legislative recognition. Traveling that difficult road would be well worth the effort in order to re-assert that this is a nation of laws.

As it is said, the wheels of justice grind slowly, but infinitely fine.

By Harvey Silverglate

    Last Friday, I wrote in this space that there are ample grounds for launching ethics investigations against the Bush Administration lawyers who wrote formal opinions authorizing various “coercive interrogation” techniques that long ago overstepped the lines – a bit vague here and there, but not altogether unfathomable – the law uses to define torture. There is no prohibition – at least in theory – preventing investigations against lawyers if investigators can prove that the legal opinions the lawyers wrote are so far off the mark that one can confidently and reasonably conclude that they wrote their advice in bad faith. That kind of conclusion would be supported by evidence that the lawyers gave their advice not so much to inform and educate the agency operatives, as to give them legal cover and, concomitantly, the defense of ‘good faith reliance on the advice of counsel’ in case they were ever prosecuted for violating anti-torture statutes.

    And last month, I argued that the Department of Justice’s prosecution of a Connecticut lawyer for obstruction of justice – for deleting child pornography from a client’s computer – provided a good preview of how the Department would treat the CIA’s destruction of interrogation videotapes, so long as they applied the same principles to DOJ lawyers as to outsiders.

    Lo and behold, just this week the DOJ echoed this storyline when it indicted a well-respected Florida lawyer for providing legal advice to a second lawyer that the second lawyer’s acceptance of a large legal fee from an alleged drug kingpin was legal. (It is against the law to knowingly accept money acquired in the drug trade.) The DOJ prosecutors alleged that highly-regarded Miami attorney Ben Kuehne – who just happened to represent Al Gore in the legal dispute over the outcome of the 2000 election, when the Supreme Court installed that election’s loser in the White House – wrote the opinion in bad faith, in order to facilitate the acceptance of the fee by the kingpin’s high-profile trial lawyer, Roy Black.

    Bloggers and other commentators are just beginning to focus on the increasingly obvious link between the DOJ’s war on lawyers and its war on civil society more generally. For various reasons, ranging from the brazen stonewalllng of Attorney General Michael Mukasey to the administration’s closely-held true-believer attitude toward its claims of expansive Executive power, DOJ officials are reluctant to call “coercive interrogation” by its rightful name – torture. If they will not do that, they are even less likely to prosecute or start ethics investigations against government lawyers who authorized torture techniques that lawyers, legal scholars, and laymen all recognize are illegal and immoral. (Of course, as I noted earlier, state bar authorities may arguably commence ethics investigations of lawyers for transgressions committed while they were in federal service.)

    In his own take on the connection between the Kuehne prosecution and the torture memos, Scott Horton explains that in “United States v. Altstoetter[,] … two officials of the [Reich's Ministry of] Justice … gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot,” leading to their conviction at the Nuremberg war crimes tribunal in 1947. “And in fact the lawyers got off lightly,” he writes: facing “[t]en years … they were released after seven years for good behavior.”

    So maybe prosecution is in order, given the legal precedent for it. But let’s be generous and say that prosecution would be overkill – or let’s be pragmatic and say that in this political climate it simply won’t happen. But if a respected Miami lawyer can be indicted for writing a legal opinion – which many Florida lawyers believe to have been written in good faith – on a drug-money question, then surely government lawyers can and should have to undergo, at minimum, an ethics investigation for selling out themselves, the legal profession, and American politico-legal values in order to tell Bush and Cheney that they could torture prisoners to their hearts’ content.

The New York Times reported this morning that its Pulitzer Prize-winning reporter and author, James Risen, was subpoenaed by a federal grand jury sitting in Alexandria, Virginia, which seeks the reporter’s sources for a chapter of his 2006 book, State of War. The grand jury seems most concerned about information that was in one of the book's chapters, but which had not previously been reported in the Times' earlier reporting of the super-secret NSA warrantless wiretapping program.

I wrote about the possibility of legal action against Risen (and his colleague at the Times, reporter Eric Lichtblau) in my January 6, 2006, "Freedom Watch" column in the Boston Phoenix. I had warned that the feds could not only convene a grand jury, but arguably could also get an indictment for espionage. The only reason the Department of Justice might not go that far, I suggested, would be because it doubted it could extract a unanimous jury verdict against the newspaper on its home turf -- in Manhattan -- or in Washington D.C., where juries are typically recalcitrant, anti-government, and heavily minority. Since the DOJ would not want to lose such a case at trial, the Times and its reporters, Lichtblau and Risen, might be spared a criminal prosecution for espionage.

But according to the 02/01/2008 report in the Times, the grand jury convened in the Alexandria, Virginia, federal courthouse for the Eastern District of Virginia. The CIA's headquarters are located a few miles away (within the same judicial district) in Langley, and many federal court proceedings involving the CIA take place at that courthouse. So the feds didn't need to find some obscure reason to keep the case out of a hostile district in Manhattan -- let alone across the Potomac River. Virginia juries and judges are far more pliable and government-friendly than is the case in New York or Washington. And so the subpoena issue, while important, is just a preliminary worry. The real concern is the threat of an espionage indictment of the reporters in a government-friendly jurisdiction. Fingers are crossed here for the survival of the First Amendment rights of the press to report on important government over-reaching.

(Thanks to James Tierney for his assistance.)

By Harvey Silverglate

Sometimes, as Sigmund Freud put it, a cigar is just a cigar. And, likewise, sometimes words in the Constitution actually mean what they say. Much brainpower, however, has been expended trying to argue that the First Amendment, which admonishes that “Congress shall make no law…abridging the freedom of speech, or of the press” [emphasis added], actually doesn’t mean what it appears to say. And, similarly, we are now in the midst of a national (and judicial) debate over whether the Constitution’s protection of the writ of habeas corpus – a cornerstone of the historic rights of Englishmen and of Americans – really means what, in quite clear terms, it says.

Yesterday the Supreme Court heard arguments in the combined cases Boumediene v. Bush and Al Odah v. Gates, which touch on this momentous question: Can the United States government escape the seemingly clear language of the Constitution’s habeas corpus guarantee by shipping people to the gulag at Guantanamo Bay and then providing so-called “combatant status review tribunals,” run entirely by the military, as a supposed substitute for habeas corpus hearings conducted by the federal courts?

Article I, Section 9 of the Constitution seems pretty clear: “The Privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus, under ancient English law inherited and adopted by this country, guarantees that any prisoner has the right and opportunity to petition a court to seek a release order. The court is then obligated to order release unless the jailer is able to show the court that the incarceration is lawful. This is what makes any prison system operated by our government subject to the rule of law – the jailer has to come into court and explain under what lawful process and charge the prisoner is being held. It distinguishes American prisons from the gulags found in dictatorships around the world. In the England of old, habeas corpus limited even the power of the king to arbitrarily lock up those in royal disfavor.

Well, Congress and the Bush Administration take the position that the right of habeas corpus should not be made available to prisoners at Guantanamo, even those already held without trial as long as six years and still counting, because the military tribunals provided them somehow are an adequate substitute for habeas corpus. What is the legal justification for this argument that kangaroo court military hearings are an adequate replacement for real judicial hearings in a real court? The Supreme Court foolishly ruled in 1977 in Swain v. Pressley that the writ of habeas corpus does not need to be made available to detainees so long as they have an “adequate and effective” substitute allowing them to raise similar claims, even if not wholly within the formal habeas petition structure. So the question is whether the military tribunal system cooked up by the Bush Administration furnishes such a reasonable substitute in the Guantanamo enclave.

In its brief for yesterday’s arguments, the Administration argued that the kangaroo court system provided by the 2005 Detainee Treatment Act is an “adequate and effective” substitute, which it is plainly not. Of course, the government also argues – and Justice Scalia will undoubtedly agree – that habeas does not extend to Guantanamo, even though the court definitively settled that the answer to that question is “yes it does” in 2004’s Rasul v. Bush. These two curious arguments are further explained in this online write-up of the case.

Besides the administration’s bad faith interpretation of the law of habeas, the answer to the central question posed in Boumediene would appear to be quite simple to any citizen with an IQ at least as high as his or her age. But, from all reports, the Supreme Court is close to being divided on this question. For those of us who take seriously the Constitution – and the plain meaning of the words of the English language, in which the Constitution is written – these petty squabbles about what the phrase “shall not be suspended” means are quite remarkable. There may be some vague language in the Constitution, but the habeas corpus clause does not seem to be an example. How can it be, then, that the conservatives on the high court, who normally can be found bleating about liberals’ failure to follow the “strict construction” of the “plain language” or “original intent” of our founding document, are suddenly going out of their way to twist and turn in order to escape the obvious import of the habeas corpus clause? It seems to me, to use a syllogism, that combatant status review tribunals are to habeas corpus, as Hustler Magazine is to real sex – a rather pale imitation.

Stay tuned for whether language, not to mention common sense and the lessons of history, has any real meaning in our age, and whether, to paraphrase the late Lillian Hellman (commenting on the tendency of some leftists during the McCarthy period to denounce friends and associates as Communists), the plain and tested meaning of ancient laws is to be tailored to meet the fashions of the day.

By James F. Tierney

We wanted to post a brief follow-up on Harvey's argument about Michael Mukasey and whether waterboarding is torture (it is). MSNBC host Keith Olbermann explains that Mukasey's dissembling equivocation is a result of Bush's desire to cover his own legacy. Olbermann is right, and it does this while also serving the purpose noted by Harvey -- protecting an "advice of legal counsel" defense in the event of future prosecutions.

(Update, Nov. 12, 2007: this post has been edited from the original.)

By Harvey Silverglate

The media has been abuzz today with the Senate Judiciary Committee’s discomfort with Attorney General nominee Michael Mukasey – and his refusal to opine whether waterboarding (the interrogation technique widely reported as used by CIA interrogators to wring information out of suspected terrorists) is illegal or unconstitutional. Whether waterboarding works – that is, provides accurate and reliable information – is immaterial to questions about its illegality; nonetheless, it is abundantly clear to everyone outside the administration that waterboarding is, in fact, illegal.

Mukasey has a strong professional interest in not answering the question. Back in the summer of 2004, I wrote in my Boston Phoenix “Freedom Watch” column that the infamous “torture memos” had been drafted to allow interrogators to defend themselves, if they are prosecuted under the statutes that criminalize torture, by claiming they had relied on the good faith advice of counsel. (Such prosecutions would only occur if the immunity Congress has granted to interrogators – in the Military Commissions Act and the Detainee Treatment Act, according to Yale Law professor Jack Balkin – were revoked sometime in the future when the country comes back to its senses and its adherence to the rule of law.) The argument that the memos were written solely to give interrogators the operative cover of an advice of counsel defense was recently given additional credence in the memoir written by Harvard Law Professor and former Department of Justice lawyer Jack Goldsmith, The Terror Presidency.

By not taking a stand on whether waterboarding is torture, Mukasey is trying not to undermine any defense the interrogators might have. While interrogators could still rely on such a defense, a proclamation after the fact by the incoming Attorney General, to the effect that John Yoo’s advice of counsel was incorrect, would raise questions about whether it was made in good faith. An advice of counsel defense is valid only if the advice was given by the lawyer, and received by the client, in good faith.

But Mukasey’s evasions aren’t solely based on concerns over future liability for CIA interrogators. They are more transparent and laughable than the news media portray them, because he actually has effectively conceded – in not so many words – that waterboarding is torture. And he may not even know that he has done so.

He insists that he would define “torture” as conduct that “shocks the conscience.” Presumably he has deployed that vague definition so that the Bush Administration – and Republican Senators who must vote to confirm him – will figure that the legalities pose little threat to CIA torturers. After all, whose conscience are we talking about, anyway? Dick Cheney’s?

But here’s the rub: behavior that “shocks the conscience” is not as open-ended as it might appear. The formulation comes from a 1952 Supreme Court opinion, Rochin v. California, in which Justice Felix Frankfurter declared unconstitutional the harsh treatment lavished by California authorities on a suspect who swallowed his stash of morphine as he was arrested during a raid at his home. The officers took Mr. Rochin to a hospital, where, in the Court’s words,

"at the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This ‘stomach pumping’ produced vomiting. In the vomited matter were found two capsules which proved to contain morphine."

The court determined that stomach pumping – a medical procedure commonly performed when someone attempts suicide by pills, or when a child accidentally swallows poison – violates the requirement that citizens be accorded “due process of law” as guaranteed by the Fourteenth Amendment to the Constitution. The court found that when done by police in search of evidence rather than doctors acting out of medical necessity, stomach pumping was too invasive to withstand constitutional standards of decency. Certain principles are inherent in the concept of “due process”, and stomach pumping crosses the line:

"We are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience…. this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation."

In Rochin, stomach pumping involved emptying the defendant’s stomach in order to retrieve morphine capsules. Similarly, waterboarding involves strapping the victim to a board – a rack? – and filling the victim’s lungs with water (producing the sensation, and eventually the reality, of drowning) in order to get him to answer questions.

So the Judiciary Committee should be putting this question to Mukasey: if stomach pumping “shocks the conscience,” can waterboarding be far behind? Are you really unable to decide if inducing the sensation of drowning by filling the detainee’s lungs with water shocks the conscience any less than making a prisoner throw up?

(Thanks to James F. Tierney for his assistance in preparing this blog entry.)

But six years after 9/11, it may be time to start questioning our reflexive and impulsive tendencies to prioritize the illusion of security above all else, including liberty and even ordinary common sense (or what the shrinks call “reality testing”). The homeland security industry has constructed the mind-set that we are all at risk of dying in a terrorist attack. (Of course it’s true that we could all die in some catastrophe, natural or man-made, but the question is how far we have to go in wrecking our society in order to save it.) To serve that end, it deploys high-profile but inefficient and freedom-crippling policies that reinforce the sense of panic and, as one academic argues, helps bolster security-fetish politicians’ chances for re-election.

I don’t know whether the ineffective but highly-visible policies should make me laugh or cry. Do the feds seriously consider harassment of children "carrying remote-control toys" to be a necessary element of homeland security? To be sure, some people remain serious in their desires to commit acts of terrorism and other crimes. But the tendency to overhype irrelevant but visible 'threats,' at the expense of less visible and more onerous threats, ultimately does more harm than good. But when would-be travelers go out of their way to make clear that it’s a joke (or sarcasm), one would think that security personnel would stop wasting their time, taxpayers’ money, and travelers’ patience by pretending, like Chicken Little, that the sky is falling.

All this comes up because on Monday, an Ethiopian man was arraigned for telling a Logan Airport–surprise, surprise–check-in agent that he intended to blow up an airplane. When twenty-seven year old Ermiyas Asfaw was confronted about stickers on his luggage marked Dubai, United Arab Emirates, he joked that he was an al-Qaeda member. Anyone who believed him, of course, would be just a hair shy of being committable.

Like in the case of Star Simpson, it appears that Logan security has not been properly trained in distinguishing between real and faux threats. As I told a Boston Herald reporter in connection with that case, why would a terrorist proudly display on the outside of her sweatshirt the circuit board of the bomb she was carrying? In this case, would a real al-Qaeda member be likely to admit–indeed, boast–to a check-in agent that he is a terrorist, only to walk away laughing? Or would he be more likely to be as discreet and ordinary as possible in order to actually carry out his goals? Should we not insist on some common sense on the part of those entrusted with our security?

Given the instinctive reaction to anything related to terrorism in airports, Asfaw was irresponsible in joking about being a terrorist, and certainly ill-advised. But the behavior surely should not reach the level of the criminal. That it was a sarcastic joke is evidenced by his behavior after he said it, where he walked away laughing and proceeded to attempt to get on his flight before being intercepted by police.

Even worse is that, as a result of his joke to the ticket agent, Asfaw was charged with making a bomb threat. There are, of course, serious free speech implications of laws prohibiting merely talking about bombs in a jocular manner in airports—rooted perhaps in fears that ordinary citizens will be as gullible as airport security personnel and that pandemonium might erupt if people heard such off-hand remarks about bombs. But there is also a considerable problem with the poor judgment exhibited by the professionals who are tasked with protecting the public, when they seem not to be able to distinguish an obvious joke from the real thing.

The proof of the pudding is in the eating; the test of whether airport personnel are smoking too much weed will come if and when any of these cases get to a jury. My experience tells me that it will be next-to-impossible to get any Massachusetts jury to agree unanimously that either the MIT performance artist or the sarcastic Ethiopian jokester could reasonably be perceived as a terrorist. Of course, when the Homeland Security types begin to recognize that the general public does not buy all of this “national security” hype and overzeal, they may forego trial altogether, in which case maybe jokesters like Asfaw will, in the future, find themselves not facing a judge in a Boston court, but rather the wide Caribbean Sea on a tarmac at Guantanamo. If Homeland Security can’t get them in the real legal system, maybe they’ll try that parallel system that our government has created.

The Boston Globe had a well-reasoned editorial earlier this week pointing out one crucial difference between Germany’s recent detention of suspects in a terrorist bombing plot, and the “war on terror” being conducted by the Bush administration: Germany has followed a law-enforcement paradigm, not a war paradigm, and hence has been more protective of civil liberties.

There is, however, one more vital distinction. The German antiterrorist units appear to have uncovered actual explosive materials that belonged to the alleged terrorists. In the typical Homeland Security/FBI operation, undercover FBI informants supply the materials and weapons in an exploitation and manipulation of hapless (usually Islamic) individuals who would otherwise be all-talk and no-action, like the seven men arrested in Miami on conspiracy charges last year.  In other words, Germany is actually busting terrorist cells, while, too often, the FBI is creating the illusion of it, and in the process criminalizing bad thoughts and speech, rather than real crime.

How sad it is that the United States needs now to take lessons from its erstwhile enemy in World War II in how to conduct national security and criminal investigations in a fair and effective manner that protects civil liberties.

            I recalled Freud’s observation while reading the news reports of the man billed by the Miami Herald as “the federal government’s leading expert witness in the case against terrorism suspect Jose Padilla.” I have written about the long, tortured history behind the federal government’s effort to put Padilla, a United States. In short, President Bush authorized Padilla’s arrest in 2002 and promptly designated him an “enemy combatant,” a classification that was thought at the time to endow the government with the power to hold him, incommunicado and without criminal charge and trial, for the uncertain duration of the “war on terror.” After years of legal wrangling, and as the Supreme Court was deciding whether to review Padilla’s claims to violation of his most fundamental rights, the government re-designated Padilla a common (or uncommon) criminal and indicted him in 2005. He is now standing trial in federal court in Miami, along with two co-defendants. (Disclosure: One of the co-defendants is being represented by my friend and former law partner, Jeanne Baker.)

            The prosecution is seeking to utilize extensive wiretaps of phone conversations involving the defendants, in order to prove the charge that they conspired to commit murder and to provide “material support” for “jihadist” terrorist groups overseas (Padilla’s voice is reportedly heard on only eight of the more than 300,000 conversations tapped from 1993 to 2001). Many of those tapped conversations appear to be rather innocuous, filled with everyday talk, while others have slightly more enigmatic language.

             The prosecutors claim that because the defendants knew they were being wiretapped, they spoke in code. To decipher this supposed code and to testify as to its “true” meaning, the prosecution has called various expert witnesses. An FBI agent, John Kavanaugh, testified at the Miami trial that “tourism” actually meant “jihad.”  “Cheese” was code for “money,” and “iron” meant “weapons.” Meanwhile, to “get married” meant to be killed, testified Dr. Rohan Gunaratna. The names of fruits and vegetables actually referred to weapons; thus, “eggplant” was actually a rocket-propelled grenade launcher. And so forth and so on.             

            Dr. Gunaratna, who has a degree in international peace studies from Notre Dame and a doctorate from a Scottish university, has become the belle of the terrorism-industry ball. He has testified, mostly for the Department of Justice, as a “terrorism expert” for $300 an hour. (Not bad for someone who isn’t even fluent in Arabic.) Meanwhile, the sources used by Gutaratna, who was born in Sri Lanka, remain unreviewable--as defense lawyers in the Padilla trial learned when they tried to ascertain who exactly supplied this “expert” with his insider’s “knowledge.”  Nonetheless, trial judge Marcia Cooke has qualified Gunaratna as an expert and has allowed the jurors to listen to him prattle on about the true meaning of what the jurors are hearing but presumably are not understanding without “expert” help. 

            Dr. Gunaratna, by the way, testified as a government expert in another infamous case – the trial in Boise, Idaho, of a Saudi grad student attending the University of Idaho who was charged with lending material aid to terrorism by maintaining websites through which one could follow links to jihadi websites. Dr. Gunaratna’s testimony was not sufficient to scare, nor fool, a jury of twelve solid citizens of Idaho. The student, Sami Omar al-Hussayen, was acquitted in 2004 when the jurors concluded that all he was doing was exercising his First Amendment protected right to free speech by helping people see what stuff was out there, publicly available, on the Net. Sometimes a website is just a website.